Cuomo’s Brazen Stalling Strategy

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Andrew C. McCarthy
·10 min read
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Jim Geraghty, Phil Klein, and Jack Crowe had excellent posts last week on the new wave in the Cuomo-scandal swirl: the New York governor’s preferential COVID-testing treatment for his family members, including Cuomo’s CNN talking-head brother and hagiographer, Chris, and sundry courtiers (the Times has added pharma execs to the roster). I want to address what happens now, which may be . . . not much — at least for a while.

Cuomo and his allies are perversely exploiting the metastasizing of allegations against him as a stalling strategy. They urge that everything, including the kitchen sink, be thrown into the state assembly’s investigation, even such matters as bridge-safety concerns, which do not at the moment appear very serious. The point is to project the impression that Cuomo is not afraid of an impeachment investigation, while in reality making the investigation so extensive that the third-term governor would be in his fifth term by the time it concludes, if it ever does.

I’ve put the game this way: Cuomo is betting that the more impeachable he is, the less impeachable he is.

Preferential treatment amounts to a serious liability for the governor. That’s not just because it is an ugly look given that, as the New York Post reported Sunday, the nursing homes that were endangered by Cuomo’s policies were begging in futility for test kits while the governor’s family and friends were bumped to the front of the line.

It is a serious liability because it constitutes a black-and-white law violation that is explicitly made subject to potential removal from office under New York State ethics statutes. That puts it in a different category — if not of gravity, then of provability — than Cuomo’s two other scandals.

Nursing Homes

The proof that Cuomo misled the federal government and state legislators about COVID-related nursing-home deaths is likely to be muddled. Cuomo may have been his father’s protégé, but as HUD secretary in the Nineties, he studied dissimulation under the master, Bill Clinton.

Notice that Cuomo and his underlings keep insisting that the information his administration relayed to other government officials was true. But that begs the question: Did he give them all the required information? I’ve noted previously that, very often, the thing to watch for in a false-statements cases is what’s not said.

There is no reason to doubt that the administration cooked the books: Cuomo’s top aide, Melissa DeRosa, reportedly admitted to New York lawmakers that the administration deceived them about the true number of nursing-home deaths (though Cuomo officials seem even to have misled them about why they misled them). Still, false-statement cases based on material omissions are tougher to prove than those based on positive lies. Investigators have to establish that there was a duty to provide the information that was withheld (which all depends on exactly what was asked and what the response was . . . which we do not know at this point). In addition, it must be proved that the concealed information was withheld with a purpose to deceive — i.e., that it wasn’t an inadvertent oversight. There can be a great deal of gray area when the issue is what has been left unsaid, rather than what has been disclosed — although, to be sure, it’s not often that investigators have what DeRosa has given them: a top official admitting that information was concealed.

Sexual Harassment

To be sure, the sexual-harassment allegations are numerous and skeevy. In fact, as this is being written, news is breaking about yet another complainant: Sherry Vill, a 55-year-old married mother of three, who reports that Cuomo non-consensually grabbed her by the face and kissed her on both cheeks outside her upstate New York home, while ostensibly inspecting flood damage. As NR’s Zachary Evans details, Mrs. Vill’s teenage son took video of the incident, and a duly cringeworthy photo was rolled out at a Monday press conference arranged by Gloria Allred — the notorious publicity hound, who said she’d soon be submitting a complaint to state attorney general Letitia James.

The mounting allegations have been bolstered by Governor Cuomo’s own preening. To pose as a #MeToo hero, he championed changes in the law, which made harassment claims easier to prove. Still, to date, other than one anonymous complainant’s allegation of being groped under her blouse (which, if established, could be a crime under New York law), most of what’s been alleged is in the nature of aggressive boorishness and the creation of a hostile work environment, not sexual assault. (Note that there is no claim that the new complainant, Mrs. Vill, ever worked in the governor’s office; her allegation does not directly advance the claim that Cuomo created an intimidating workplace, though it does support the pattern alleged by state staffers.)

I do not mean to diminish the seriousness of the behavior. It is intolerable, particularly on the part of a powerful, privileged elected official, whose duties include ensuring that his public office is a safe, legally compliant workplace. I am simply assessing the possibility that an overwhelmingly Democratic state legislature would judge the sexual-harassment revelations as impeachable (as opposed to unsavory). I would be stunned if they did, even allowing for the internecine Democratic battle between anti-Cuomo Woke Progressives and pro-Cuomo Establishment Democrats (in the centrist Clinton mold, though pulled leftward by Obama).

Special Treatment

By contrast, if, as reported, Cuomo directed special treatment for his family members and political cronies, that will be harder to defend.

To repeat, this happened last March, when testing resources were scarce: Thousands of New Yorkers had anxiety about whether they were sick and where they might seek testing, but the state was so capacity-strapped that people were being advised to quarantine at home and hope for the best.

Yet, the governor took care of family and political allies. They got tested in the comfort of their homes by top medical pros, and their samples were then sped by police to the state’s lab facility, which was only capable of performing a few hundred analyses a day — in a state of 19 million that was already emerging as the epidemic’s Ground Zero in America. Overworked and under-slept clinicians were reportedly instructed to prioritize Cuomo insiders — do their samples first and stay as late as it took to get them done.

Under Section 74 of the state Public Officers Law (the so-called “privileges and exemptions” provision of the Code of Ethics), it is illegal for a state official to “use or attempt to use his or her official position to secure unwarranted privileges or exemptions for himself or . . . others, including but not limited to, the misappropriation to himself . . . or to others of the property, services or other resources of the state.” Section 74’s “Violations” provision explicitly provides that offending officials “may be fined, suspended or removed from office or employment in the manner provided by law.”

Cuomo’s pom-pom squad is not denying that he gave preferential treatment to family and friends; they are obfuscating. The party line is that, in the early days of the pandemic, it was vital to go the extra mile to contact-trace and test people who might, if stricken, infect state officials. Of course, no one is disputing that it was prudent to give special attention to potentially infected officials who were vital to the state’s pandemic response. But that is not what the complaint is. The misconduct involves preferential treatment for relatives and friends of the governor who were not government officials, were not an infection risk for government officials, and whose testing was unrelated to government business — such insiders as celebrity CNN host Chris Cuomo, whose only known “government service” was nightly fawning coverage of his older brother.

The Interminable Public Ethics Investigation Process

Alas, while the preferential treatment allegation may be more concrete for proof purposes, the process of establishing it plays into Cuomo’s strategy: delay, delay, delay.

When asked about the allegation, state attorney general James (a Cuomo rival) asserted that she does not have jurisdiction to investigate them. Under the ethics law, they are referred to the Joint Commission on Public Ethics — a panel of 14 people, out of which six members, including the chairman, are Cuomo-appointees, and three were appointed by assembly speaker Carl Heastie, a Cuomo ally.

How’s this for a morass? If the commission gets a misconduct referral, there is no deadline for the next step — which is not to open a probe but, rather, to notify the suspected official of the allegation, any potential law violations, and evidence. At that point, the official has 15 days to file a written response. From there, the commission has two months to conduct a preliminary investigation for the purpose of voting on whether the allegation is serious enough to warrant a full-blown “substantial basis investigation” (i.e., a probe of whether there is a substantial basis to believe an ethics law was transgressed). The panel then votes on whether to conduct such an investigation, which requires eight yeas. But not just any eight (out of the 14 members); two of the votes would have to come from commissioners appointed by Cuomo.

If there is a yes vote, the suspect official must get 30 more days’ notice of a hearing, in advance of which he gets full discovery, and at which point he may object and present evidence in his defense. Following the hearing, the commission votes on whether to issue a “substantial basis report.” Again, at least eight members must approve the issuance of a report, including and at least two of Cuomo’s own appointees.

If there is a yes vote, and if a report is issued, the commission must make it available to the suspect official, so he can lodge objections and propose changes. Once the report is issued, the commission has 45 more days to make it public. Note: This is the only public aspect of the process; all proceedings, hearings, and written communications are kept secret while the investigation proceeds.

Furthermore, the commission can only make recommendations. That is, in the unlikely event Cuomo appointees on a Cuomo-dominated commission were to vote to conduct a Cuomo investigation, issue a report outlining Cuomo’s misconduct, and recommend Cuomo’s removal (as opposed to, say, a fine), the commission would have no power to enforce such findings. It would be up to the legislature to decide what to do . . . which means we’d be right back to where we are now.

Yes, there’s nothing quite like the investigation of misconduct by people who get to write and influence the enforcement of the rules under which their misconduct is investigated.

In any event, the only way to accelerate this plodding procedure would be for the state assembly to take matters into its own hands, do a quick investigation, and, if appropriate, charge the preferential treatment allegation as an article of impeachment. But of course, it is the state assembly that is the (non)laboring oar on Cuomo’s stalling strategy. The Cuomo allies in charge will undoubtedly insist that the Joint Commission on Public Ethics must be permitted to carry out its investigative process . . . just like Cuomo allies insist that the attorney general’s independent investigation of sexual-harassment charges must run its course . . . and that the various state and federal probes of COVID-related nursing-home deaths must be completed . . . and who knows what else they can dredge up that needs examining — with Cuomo providing ever more grist for that slow-grinding mill.

The latest Cuomo allegations, like the previous ones, are appalling. But if you think that means the governor will be leaving Albany’s Executive Mansion any time soon, disenthrall yourself.

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